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Friday, August 27, 2010

This week's Case of the Week hits close to home... well, not so much the subject but the court: Western District of Pennsylvania in which I am admitted to practice. A woman alleges that she was sexually harassed via hypnosis on what her harasser allegedly called his "magic couch."

Susan Patroski alleges that one of her supervisors instructed her to engage in secret relaxation sessions, which were actually hypnosis, as part of her job duties. At these sessions, she claims:

[The supervisor] stroked [her] breasts, and repeatedly brought her to orgasm, utilizing the hypnotic suggestion that he would slowly count to five, and when he reached five, she would experience a rush of pleasure.

This went on for about a year, with the Plaintiff not remembering the sessions. Now, she claims her memory has returned although it's still a little hazy.

Never a dull moment in employment law! Did I mention she's seeking $5,000,000 in damages? As always, remember that these are just allegations and they have not yet been established in a court if law.

Mr. Seiner, with the help of the Federal Judicial Center, identified 3,983 employment discrimination cases during fiscal year 2006 in which a defendant filed a motion for summary judgment that was decided by the district court. Among those 3,893 cases, summary judgment was granted – either in whole or in part – in 3,219 cases:

This is certainly an interesting data point drawn from anecdotal evidence. Unfortunately, it’s just that - anecdotal evidence. The “80% statistic” is a descriptive statistic, but not a statistical analysis. It doesn’t formally address any underlying expectations about a summary judgment motion being granted. Given the information available here, it’s not possible to do a comparative statistical analysis. There’s nothing to compare this 80% result to.

But for those of you who were looking forward to a statistical analysis – all is not lost. There is an interesting statistical analysis contained in Mr. Seiner’s paper: the impact of Twombly on the dismissal rates in Title VII employment discrimination cases. This analysis looks at whether we can infer that Twombly - in effect – applies a “heightened pleading standard” to these kinds of cases.

Mr. Seiner examines the decisions of district courts on motions to dismiss brought for failure to state a claim. Two data sets were compared against one another:

A. Conley Decisions: decisions in the year right before Twombly that relied on the Supreme Court’s decision in Conley;

B. Twombly Decisions: decisions in the year immediately after Twombly.

Mr. Seiner notes that his study didn’t look at absolute dismissal rates. Rather, he was looking at whether judges relying on Twombly were more likely to dismiss a Title VII case than those judges relying on Conley. In other words, Mr. Seiner is looking at percentages.

Using the Westlaw database, 264 “Conley” opinions and 268 “Twombly” opinions were identified, for a total of 532 decisions. For each decision, the following information was recorded:

1. The name of the case and the citation;
2. The jurisdiction where the case was filed;
3. Whether the motion to dismiss was:
a. Granted;
b. Denied;
c. Granted-in-part.

Upon reviewing the decisions, 73 “Conley” opinions and 63 “Twombly” opinions were excluded from the study for reasons such as addressing a motion for summary judgment rather than a motion to dismiss, they were brought under a statute other than Title VII, or involved only magistrate recommendations to a district court.

The final sample of 396 opinions – 191 “Conley” opinions and 205 “Twombly” opinions – were then compared:

Among the decisions studied, 54.5% of those relying on Conley were granted in whole, while 57.1% of those relying on Twombly were granted in whole. We see a similar pattern among decisions in which the motions were denied: 24.6% of those relying on Conley versus 22.4% of those relying on Twombly.

Mr. Seiner also notes that “the rate at which district courts have been granting motions to dismiss in Title VII decisions has begun to rise when the court relies on Twombly.” To demonstrate this, he restricts his “Twombly” decisions to those occurring during the most recent six months of the study period.

Regarding this six month study, Mr. Seiner states:

In the short time following Twombly, then, the data already demonstrate a higher percentage of decisions that grant a motion to dismiss in the Title VII context when the courts rely on the new decision.

Before you get too excited about this and conclude that Twombly is a game-changer, you should know that the differences found by Mr. Seiner in his six-month study are not statistically significant (he mentions this on page 22 of his paper).

I replicated Mr. Seiner’s analysis and compared the likelihood of “granted” (defined as granted either in part or in whole) under Conley and Twombly. I found that there was no statistically significant difference in the likelihood of “granted” in either the full study period or when using the last six months of data:

Comparison of Conley and Twombly – entire Twombly period: Z = 0.39

Comparison of Conley and Twombly – six-month Twombly period: Z = 0.97

As you know, Hazelwood School District v. US (1977) held that a disparity of at least 2 or 3 units of standard deviation is statistically significant. In the Conley / Twombly comparisons, we see only 0.39 units and 0.97 units of standard deviation, respectively.

This means that we cannot conclude that the likelihood of a motion to dismiss being granted is any different under Twombly than under Conley. Because the difference is not statistically significant, we cannot rule out the possibility that the difference we see is attributable to random chance. From a purely statistical perspective, the effect of Twombly on motions to dismiss in employment discrimination cases is the same as that of Conley.

Monday, August 23, 2010

I appeared on The Proactive Employer podcast on Friday, August 20, 2010 to discuss religious discrimination with host Stephanie Thomas. We discussed the various types of religion-based employment discrimination, including failure to reasonably accommodate the sincerely held religious beliefs of employees. We also talked about former Lawffice Space Case of the Week, EEOC v. Geo Group, Inc.

Click 'Play' below to listen to the podcast on the embedded player. If you do not see the player (for my email subscribers) then click here to listen online.

This was my second appearance on The Proactive Employer. You may recall that I appeared back in April 2010 to discuss Ledbetter and Compensation Document Creation and Retention. Play below or online here).

Thursday, August 19, 2010

Ordinarily, I wouldn’t pick a California trial court verdict as the Case of the Week, but this one is hard to pass up. It includes sex, texts, and videotape. It pits paralegal against attorney. And it has a surprise ending that would make M. Night Shyamalan proud.

Alison Moreno was a paralegal working for attorney Thomas Ostly. The two had some sort of sexual relationship, which at some point ended. Ostly claimed she was fired because she refused to continue the relationship, and filed a sexual harassment lawsuit. Let’s cut to the twist ending. The jury entered a $1.55 million verdict… against Ms. Moreno!

Why? Well, she decided to tell people Mr. Ostly was a sexual predator who would sometimes bill clients for time he spent shopping online (Correction 8/25/10: It was Mr. Ostly who alleged that Ms. Moreno took advantage of their relationship and that she would shop online while billing him. My apologies for the error.). If those nasty allegations are untrue, then that’s a little thing we call “defamation.” And defamation was just the counterclaim that led to Mr. Ostly’s big money verdict. (Update 8/25/10: The jury found her statements per se defamatory).

Mr. Ostly was helped by attorney Shane Anderies who pitched this as a case of abusing the system: “The system is not to be used improperly," he said. "The system is to be used for legitimate claims." A $1.55M counter-verdict sure provides an incentive to use the system properly I guess!

Case of the Week is a weekly feature. On Fridays (a little early this week) I will cover a particularly important, fun , or interesting employment law case. This is entry #3. All Case of the Weeks are tagged COTW.

The author, Joesph Seiner, obtained data from the Federal Judicial Center (FJC) on the success rates of employment discrimination plaintiffs faced with summary judgment motions filed by employers. The data set consists of cases terminated in FY 2006 in which the employer filed a summary judgment motion. To make sure I'm not distorting his methodology, here's exactly how he described it:

The FJC’s search of employment discrimination cases terminated in the federal district courts during fiscal year 2006 where a defendant filed a motion for summary judgment that was decided by the district court revealed a total of 3983 summary judgment orders.

This yielded the following results:

Result of Motion | % of Total
Granted: 62.6%
Granted-in-Part: 18.2%
Denied: 19.2%

It's tough to know the impact of the Granted in Parts. They may result from employees "throwing in the kitchen sink" and may actually leave the Plaintiff's primary case intact. Also, the author notes that summary judgment motions are common but does not provide statistics on that issue. So the numbers don't really show how often employer's are winning cases through summary judgment motions.

Thursday, August 12, 2010

This week's employment law case of the week is Philadelphia Parking Authority v. UCBR. In this recent Commonwealth Court of Pennsylvania case, the Court awarded unemployment compensation (UC) benefits to an employee who was terminated for sleeping on the job.

To understand what makes this case special, it is important to understand a few UC basics. An employee is ineligible for benefits when he or she was terminated for "willful misconduct." The term "willful misconduct" includes deliberate violation of an employer's rule. If an employer establishes that an employee intentionally violated a rule, the employee may establish that he or she violated the rule for "good cause" and still collect UC.

In this case, the employee was caught sleeping on the job in violation of a workplace rule. The employee, however, had sleep apnea which would cause her to fall asleep without even realizing it. Now, you may be thinking that this sounds like a "good cause" (and generally, health conditions can constitute good causes). What makes this case remarkable is that the Court does not even require her to establish good cause!

Instead, the Court held that the employer failed to establish that the employee's violation of the rule was intentional or deliberate:

The record reveals that Claimant's position involved sitting in the money room for hours with nothing to do and that she would get drowsy. Claimant recognized the problem and attempted to address it by informing Employer that she was tiring and asking for additional work to keep her busy and alert. However, with the exception of two small assignments, Employer did not provide her with additional work or take any other action to remedy the situation.

In a concurring opinion, Judge Ledbetter noted that "[A]nyone left alone in a room for hours on end late at night with nothing to do might well fall asleep unintentionally."

Is the take-away that some jobs are soooo boring that employers can't reasonably expect employees to stay awake? Not so fast. It's hard to say whether this case would have come out the same way had the employee not had (or at least testified to having) sleep apnea. Also, the employee took affirmative steps to remedy the situation by notifying the employer of the problem and requesting more work. Finally, employers can still provide evidence of intent to sleep (ex. turning off the light, grabbing a pillow, going out to the car, etc.).

Wednesday, August 11, 2010

Edward Mike Davis ran a tight ship at Tiger Oil Company, and these memos from 1977-78 prove it. He employed what can only be described as a special, very special, brand of employee relations. First, a hat tip to my Mason law classmate (and fellow employment lawyer), Derek Bottcher of Paul Hastings for alerting me to this comedic gold mine.

As background, Mike Davis was the owner of Tiger Oil Company and he distributed these memos addressing various workplace situations. You really should read through the entire collection linked above. But, I have pulled out some highlights for your amusement:

Tiger Mike on Job Screening:

I am not fond of hippies, long-hairs, dope fiends or alcoholics. I suggest each and every person in a supervisory category (from driller up to me) eliminate these people . . . . Anyone who lets their hair grow below their ears to where I can't see their ears means they don't wash. If they don't wash, they stink, and if they stink, I don't want the son-of-a-bitch around me.

Tiger Mike on Office Communications

Do not speak to me when you see me. If I want to to speak to you, I will do so. I want to save my throat. I don't want to ruin it by saying hello to all of you sons-of-bitches.

And

I swear, but since I am the owner of this company, that is my privilege, and this privilege is not to be interpreted as the same for any employee.

And

Don't talk about other people and other things in this office. DO YOUR JOBS AND KEEP YOUR MOUTH SHUT!

Tiger Mike on Birthdays

[T]here will be no more birthday celebrations, birthday cakes, levity, or celebrations of any kind within the office. This is a business office.

Tiger Mike on Tiger Mike

So, what separates Mike from your run-of-the-mill employee? I think he sums it up best himself, "There is one thing that differentiates me from my employees. I am a known son-of-a-bitch, and I care to remain that way."

Tuesday, August 10, 2010

Huffington Post reports that a Milwaukee teachers' union has filed a discrimination-based lawsuit. The basis of the lawsuit? Viagra is not covered by their health insurance plan, and that's discrimination against men.

The policy argument against this is pretty obvious. High costs at a time when budgets are tight. The article notes a consultant's report that adding Viagra would cost $786,000 per year. Also, its common usage is generally not "medical necessity."

An attorney for the union counters, by arguing that:

[E]rectile dysfunction is associated with heart disease, prostate cancer and other conditions, and the drugs are approved by the Food and Drug Administration and recommended by the American Urological Association.

(quote from article, not attorney). They also argue that some "less desirable" options for men are already included.

So where's the discrimination? The union brought the lawsuit under the Wisconsin Fair Employment Act. One brief claims that various female sexual disfunction treatments are covered by the plan, so why exclude Viagra for the guys?

This story is starting to get some traction, so we may be hearing more about it in the news...

Thursday, August 5, 2010

In EEOC v. Geo Group Inc., the Third Circuit held that a private contractor that runs prisons could ban Muslim head coverings, called khimars, under Title VII. The EEOC filed suit on behalf of a class of Muslim women who wore khimars and refused to comply with the company's dress code prohibiting hoods, hats, caps, scarves, etc.

First, a recap of a prima facie case of workplace religious discrimination:

(1) she holds a sincere religious belief that conflicts with a job requirement;
(2) she informed her employer of the conflict; and
(3) she was disciplined for failing to comply with the conflicting requirement.

BUT the employer can then show that either:

[1] it made a good-faith effort to reasonably accommodate the religious belief, or
[2] such an accommodation would work an undue hardship upon the employer and its business.

The employer argued that granting an exception for the khimars would impose an undue hardship by compromising the prison's security and safety. Specifically, including that:

(1) khimars, like hats, could be used to smuggle contraband into and around the Hill Facility,
(2) that khimars can be used to conceal the identity of the wearer, which creates problems of misidentification, and
(3) that khimars could be used against a prison employee in an attack.

The Court agreed, affirmed summary judgment for the employer.

This case reaffirms the principle that workplace safety and security can trump religious accommodations. An important part of the Court's analysis, however, focused on prison administration and noted that "prison is not a summer camp." And chances are, your workplace is not a prison. So employers should by no means consider this a green light to ban head scarves.

Wednesday, August 4, 2010

Yesterday, I highlighted the Five Persistent Challenges to Equal Pay. The Obama administration is pushing to pass the Paycheck Fairness Act, and I promised a summary of that legislation in a future post.

Today I deliver on that promise. However, the post is not here on Lawffice Space. It is on the brand new Lawffice Space Tumblr. If you go there you will find two audio entries discussing six impacts of the Paycheck Fairness Act on employers (Part I | Part II).

Lawffice Space Tumblr? What does this mean?

Lawffice Space is NOT going away and will not change.

Tumblr is just a place where I can put some "quick hits." For example, I have a few links to articles with just a sentence or two about the article on Tumblr. The blog you're reading right now contains longer, more substantive posts.

Tumblr offers some cool features. For example, I can call-in audio entries so the Paycheck Fairness Act audio clips mentioned above were done via cell phone. The photo entries are fun. The format is basic.

In short, Tumblr is just a new play area to put some short-form content, play with a new format, and experiment with some different blogging tools. It is not intended as a replacement to Lawffice Space, but readers of this blog will likely enjoy Lawffice Space Tumblr as well.

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Lawffice Space - Pennsylvania and Federal Labor & Employment Law Blog

Produced by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania. McQuaide Blasko also has offices in Hershey and Hollidaysburg. Mr. Miles works in the firms's Litigation and Labor & Employment Law practice groups, providing legal services to employers and employees relating to human resources, employment discrimination, and other employment law issues.